Opinion issued April 15, 2014

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00078-CR

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JOSEPH EARL FRANCIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court 

Harris County, Texas

Trial Court Cause No. 1342243

MEMORANDUM OPINION

Appellant Joseph Earl Francis pleaded guilty, pursuant to an agreement with 

the State that punishment be capped at confinement for 35 years, to the first degree 

felony offense of murder. See TEX. PENAL CODE ANN. § 19.02 (West 2011). The 

trial court found appellant guilty and, in accordance with appellant’s plea 
2

agreement with the State, assessed punishment at confinement for 35 years. The 

trial court certified that this is a plea-bargain case and that appellant does not have 

the right of appeal. Nevertheless, appellant, proceeding pro se, filed a notice of 

appeal. We dismiss the appeal for lack of jurisdiction. 

A plea bargain case is one in which “a defendant’s plea was guilty or nolo 

contendere and the punishment did not exceed the punishment recommended by 

the prosecutor and agreed to by the defendant.” TEX. R. APP. P. 25.2(a)(2). In a 

plea bargain case, a defendant may appeal only those matters that were raised by 

written motion filed and ruled on before trial, or after getting the trial court’s 

permission to appeal. Id. The appeal must be dismissed if a certification showing 

that the defendant has the right of appeal has not been made part of the record. 

TEX. R. APP. P. 25.2(d).

The clerk’s record reflects that appellant pleaded guilty in exchange for the 

State’s recommendation that punishment be capped at confinement for 35 years. 

An agreement to a recommended cap on punishment constitutes a plea bargain. 

See Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003); Wilson v. 

State, 264 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Waters 

v. State, 124 S.W.3d 825, 826–27 (Tex. App.—Houston [14th Dist.] 2003, pet. 

ref’d);. The record of the plea hearing reflects that the trial court so admonished 

appellant and that appellant understood that he would not have the right of appeal. 
3

The trial court assessed punishment at confinement for 35 years, in accordance 

with appellant’s agreement with the State.

1 We conclude that the record supports 

the trial court’s certification. See TEX. R. APP. P. 25.2; Dears v. State, 154 S.W.3d 

610, 615 (Tex. Crim. App. 2005). 

The trial court did not rule adversely to appellant on any pre-trial matters

and did not give permission for appellant to appeal. See TEX. R. APP. P. 25.2(a)(2). 

Because appellant has no right of appeal, we must dismiss the appeal. See TEX. R.

APP. P. 25.2(d); Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) (“A 

court of appeals, while having jurisdiction to ascertain whether an appellant who 

plea-bargained is permitted to appeal by Rule 25.2(a)(2), must dismiss a prohibited 

appeal without further action, regardless of the basis for the appeal.”).

Accordingly, we dismiss the appeal for lack of jurisdiction. See TEX. R.

APP. P. 43.2(f). We dismiss any pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).

 

1 The trial court’s judgment states, “Term of Plea Bargain: Without an Agreed 

Recommendation.” Such language does not convert the plea to an open plea when, 

as here, the plea was entered pursuant to agreed sentencing cap. See Threadgill v. 

State, 120 S.W.3d 871, 872 (Tex. App.—Houston [1st Dist.] 2003, no pet.) 

(holding statement in record indicating that there was no agreed recommendation 

did not convert proceeding into open plea when plea was entered pursuant to 

agreed sentencing cap).